united states v. singleterry, 1st cir. (1994)

7/26/2019 United States v. Singleterry, 1st Cir. (1994)

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USCA1 Opinion

August 3, 1994 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

____________

No. 93-2232

UNITED STATES,

Appellee,

v.

DARYL E. SINGLETERRY,

Defendant, Appellant.

____________

ERRATA SHEET

The opinion of this court issued on July 18, 1994,

amended as follows:

Page 4, third line from the bottom: Replace "Fed. R. C P. 39(a)" with "Fed. R. Crim. P. 29(a)."


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United States Court of Appeals United States Court of Appeals For the First Circuit For the First Circuit ____________________

No. 93-2232

UNITED STATES,

Appellee,

v.

DARYL E. SINGLETERRY,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge] ___________________


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____________________

Before

Torruella, Circuit Judge, _____________ Coffin, Senior Circuit Judge,

____________________ and Stahl, Circuit Judge. _____________

____________________

Stephen H. MacKenzie for appellant. ____________________ Michael M. DuBose, Assistant United States Attorney, wit

__________________

Jay P. McCloskey, United States Attorney, was on brief for appe ________________

____________________

July 18, 1994 ____________________

STAHL, Circuit Judge. In this appeal, defendan _____________

appellant Daryl E. Singleterry contests his jury convicti


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and resulting sentence for violation of federal dr

trafficking laws. Singleterry raises two issues for o

consideration. First, he protests the district court

refusal to instruct the jury to determine whether t

prosecution produced sufficient evidence to establish t

trustworthiness of his voluntary, extrajudicial confessio

Second, Singleterry, who is black, maintains that

sentence violates the equal protection component of the Fif

Amendment because the difference in punishment for cocai

base ("crack") offenses and cocaine ("cocaine powder

offenses is either irrational or racially discriminator

Finding neither argument persuasive, we affirm.

I. I. __

BACKGROUND BACKGROUND __________

On January 14, 1993, Maine law enforcement agent

responding to reports of drug dealing at the Days Inn

Kittery, Maine, commenced surveillance of the motel. T

evening, they observed Jamee Landry, an associate

Singleterry, exit Room 225 with George Wilson, anot

Singleterry associate and suspected drug dealer. The t

entered Landry's car and drove to Portsmouth, New Hampshir

where the agents lost their trail. Early the next mornin

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cocaine base found in the vehicle. He also admitted that

had stolen the handgun seized by the agents, explaining t

he needed the handgun to protect himself from individuals

were jealous of his cocaine business. In additio

Singleterry told the agents that he did not have a job, t

he had been dealing cocaine base for a considerable period

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time, and that the cash seized from his jacket pocket as we

as the money in his savings accounts were proceeds from

sale of cocaine base in the Portsmouth, New Hampshire, are

Finally, Singleterry stated that, as in this instance,

purchased most of the cocaine base he sold from a source

Lawrence or Lowell, Massachusetts. According to Singleterr

he would ordinarily pay $250 for a quarter ounce of cocai

base and then sell it for $1250.

Singleterry was charged in a three count indictme

with possession with intent to distribute cocaine, 21 U.S.

841(a)(1) and 841(b)(1)(B)(iii) (1988 & Supp. IV 199 ___


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(Count I), the use and carrying of a firearm in connecti

with a drug trafficking offense, 18 U.S.C. 924(c) (1988

Supp. IV 1992) (Count II), and deriving certain person

property from proceeds obtained as the result of dr

trafficking activity, 21 U.S.C. 853 (1988) (Count III

The parties agreed to have the district court decide Cou

III on the basis of the trial evidence.

At trial, the government introduced eviden

probative of the facts described above, relying heavily

the agents' live testimony concerning Singleterry

confession. At the close of the government's case in chie

the defense moved for judgment of acquittal. See Fed.___

Crim. P. 29(a). Defendant's primary contention was that t

government's evidence could not suffice to support

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conviction because the government did not adequate

corroborate Singleterry's confession. See Opper v. Unit ___ _____ ___

States, 348 U.S. 84 (1954) (prohibiting convictions on t


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______

basis of uncorroborated confessions). The government argue

inter alia, that there was ample evidence to demonstrate t _____ ____

truth and accuracy of the confession. The district cou

reserved judgment until the close of all the evidence. Aft

the defense presented no evidence, the court deni

defendant's motion in a detailed ruling from the bench.

Singleterry timely requested a jury instructi

that "as a matter of law a confession alone is not sufficie

evidence upon which to convict the defendant, that t

confession must be accompanied by additional corroborati

[evidence] or sufficient indicia of reliability." T

district court refused to do so, explaining that t

corroboration inquiry is for the court and not the jur

According to the district court, the role of the jury

simply to consider whether the evidence establishes ea

element of the offense beyond a reasonable doubt, althou

the jury is free to question the probative value of

confession in light of the strength or weakness of t

corroborative evidence.

After deliberating for less than an hour, the ju

convicted Singleterry on Counts I and II. The district cou

later issued an orderof forfeiture in resolution ofCount II

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must instruct the jury to find the confession to

trustworthy before considering it as evidence of guil

Second, Singleterry asserts that, even in the absence of

general rule mandating such an instruction, the distri

court is obliged to instruct the jury on the corroborati

requirement where the evidence of trustworthiness is so we

that a jury might differ from the court in its resolution

the question.

Whether the court must assign such a role to t

jury is a pure question of law subject to plenary revie

See, e.g., United States v. Gallo, 20 F.3d 7, 11 (1st Ci ___ ____ _____________ _____

1994) (holding that de novo review is customary for questio __ ____

of law) (citing In re Howard, 996 F.2d 1320, 1327 (1st Ci ____________

1993)). Thus, although the district court's reasoning

prove persuasive, and its conclusion coincide with our o

-7-

7


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we are free to reject a reasonable reading of the law

favor of the interpretation we view as correct.

To begin with, we note that a defendant's o

statements are never considered to be hearsay when offered

the government; they are treated as admissions, competent

evidence of guilt without any special guarantee of the

trustworthiness. See Fed. R. Evid. 801(d)(2) & adviso ___

committee's note; see also United States v. Barletta, 6 ___ ____ ______________ ________

F.2d 218, 219 (1st Cir. 1981). Nevertheless, there is

danger that the jury will rush to credit a confession witho

seriously considering whether the defendant confessed to

crime he did not commit. As a result, the federal cour

have adopted common law rules designed to prevent a jury fr

convicting the defendant solely on the basis of

untrustworthy confession. The general rule is that a ju

cannot rely on an extrajudicial, post-offense confessio

even when voluntary, in the absence of "substanti

independent evidence which would tend to establish t

trustworthiness of [the] statement." Opper v. United State _____ ___________

348 U.S. 84, 93 (1954). See also Smith v. United States, 3 ___ ____ _____ _____________

U.S. 147 (1954); Warszower v. United States, 312 U.S. 3 _________ ______________

(1941); United States v. O'Connell, 703 F.2d 645 (1st Ci

_____________ _________

1983).2 The Court has explained that independent proof


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____________________

2. Many states adhere to a more traditional formulationthe corroboration rule, requiring independent proof of t

corpus delicti ("body of the crime"), i.e., eviden ______ _______ ____

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8

the commission of the charged offense is not the only mea

of establishing the trustworthiness of the defendant

confession; another "available mode of corroboration is f

the independent evidence to bolster the confession itself a

thereby prove the offense `through' the statements of t

accused." Smith, 348 U.S. at 156.3 _____

The doctrinal nature and procedural concomitants

the trustworthiness requirement announced in Opper are n _____

entirely clear. Traditionally, the district court makes

preliminary determination as to whether testimony about t

confession is sufficiently trustworthy for the jury

consider the confession as evidence of guilt. See McCormi

___ ______

145, at 562; Corey J. Ayling, Comment, Corroborati __________


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Confessions: An Empirical Analysis of Legal Safeguar __________________________________________________________

____________________

independent of the confession showing that "(a) the injuryharm constituting the crime occurred; [and] (b) this inju

or harm was done in a criminal manner." 1 McCormick_________

Evidence 145, at 557 (John William Strong ed., 4th e ________ 1992) (hereinafter "McCormick"). _________

3. Singleterry misinterprets this comment as suggesting t a full confession (one involving admissions to all elemen of the crime) automatically bolsters itself, eliminating t

need for proof of trustworthiness. According to Singleterr "under Opper and Smith, the prosecution may rely entirely

_____ _____ a confession which is not even proven to be trustworthy a put forth no evidence establishing the corpus delicti." T is simply not so. The Court has never suggested that

certain cases the government would be relieved of the bur of proving the trustworthiness of a confession. Smith mere _____ stands for the proposition that in the absence of independe evidence of the corpus delicti the government may establi ______ _______ the trustworthiness of the confession with other eviden typically used to bolster the credibility and reliability

an out-of-court statement.

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Against False Confessions, 1984 Wis. L. Rev. 1121, 11 ___________________________


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(hereinafter "Ayling"). In this respect, the Opper ru _____

essentially functions as a federal common law rule regulati

the admission of statements which "are much like hearsa

[having had] neither the compulsion of the oath nor the te

of cross-examination." Opper, 348 U.S. at 90. See al _____ ___ _

Ayling, supra, at 1136-37 & n.66 (arguing that t _____

corroboration rule "governs the admissibility

evidence").4

____________________

4. Note that Federal Rule of Evidence 804(b)(3) providesimportant parallel. Under Rule 804(b)(3), a confessionsomeone other than the accused is treated as hears

admissible as evidence of guilt if certain conditions a satisfied. Rule 804(b)(3) rests on the assumption that,

general, "persons will not make damaging statements again themselves unless they are true." 4 Jack B. Weinstein

Margaret A. Berger, Weinstein's Evidence 804(b)(3)[01],_____________________

804-138 (1993). But such a confession cannot be usedprove the defendant's guilt unless its use is necessitatedthe unavailability of the declarant for courtroom testimon

Fed. R. Evid. 804(b). Additionally, we are waryindividuals who, as a result of mental illness, a fitpassion, a misplaced sense of sacrifice, or sheer mendacit

falsely incriminate themselves in order to spare anothe Thus, "[a] statement tending to expose the declarant

criminal liability and offered to exculpate the accusednot admissible unless corroborating circumstances clear

indicate the trustworthiness of the statement." Fed.Evid. 804(b)(3). It is also significant that t

trustworthiness criterion of Rule 804(b)(3) is "cast in ter of a requirement preliminary to admissibility," Fed. R. Evi 804(b)(3) advisory committee's note. As such, the distri court makes the first and only official determination

trustworthiness, although it may be proper to instruct t jury that statements admissible under Rule 804(b)(3) "must

carefully scrutinized, weighed with great care, and recei with caution." United States v. Miller, 987 F.2d 1462, 14 _____________ ______


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(10th Cir. 1993).

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At the same time, courts often characteri

corroboration requirements as governing the sufficiency___________

the evidence. See, e.g., Warszower, 312 U.S. at 347- ___ ____ _________

(holding that "[a]n uncorroborated confession . . . does n

as a matter of law establish beyond a reasonable doubt t

commission of a crime"); O'Connell, 703 F.2d at 647- _________

(analyzing corroboration issue in rejecting challenge

sufficiency of evidence); McCormick, supra, 145, at 561-6 _________ _____

In contrast to a simple rule of admissibility, a rule

sufficiency might theoretically allow the trial judge

instruct the jury to make the final determination as

whether a confession has been corroborated. See i ___

(reporting that some state courts treat the corroborati

requirement as a jury issue); Ayling, supra, at 1136-41. T _____

Supreme Court has not ruled on the question, and neither t


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circuit nor any other circuit has adopted such a bro

approach. But cf. United States v. Marshall, 863 F.2d 128 ___ ___ _____________ ________

1287 (6th Cir. 1988) (holding that the district court shou

have instructed the jury on the corroboration requireme

where "[t]he need for corroboration [was] apparent").

It is within the uncertain framework of sufficien

that Singleterry positions his appeal. Singleterry does n

claim that the district court erred in admitting evidence

his confession. Nor does he assert that the district cou

improperly found that the confession was adequate

-11- 11

corroborated in denying the motion for judgment

acquittal.5 Rather, Singleterry insists that, even after

court has properly admitted evidence of a confession a

correctly tested the sufficiency of the evidence to support

conviction, the court has a responsibility, either general

or in certain cases, to instruct the jury to determine t

the confession is trustworthy before considering it


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evidence of guilt. This has never been the law in t

federal courts, and we decline to adopt such a rule today.

____________________

5. Two paragraphs in Singleterry's opening brief sugge that his appeal comprehends a challenge to the distri court's denial of the motion for acquittal. Nonetheles Singleterry's reply brief states that "Appellant is n arguing that the evidence was insufficient for the court

determine that the corpus delicti existed. Appellant is n arguing that . . . no rational trier of fact could find t corpus delicti sufficient." In any event, it is appare that the district court did not err in finding that t government's evidence adequately established t

trustworthiness of Singleterry's confession. Proof of t presence in Landry's car of 6.46 grams of cocaine base --

controlled substance in an amount substantial enoughsuggest an intent to distribute -- independently establis

the corpus delicti with respect to Count I. No more______ _______

required to demonstrate the trustworthiness of Singleterry confession to the tangible crime of possession of cocai base with intent to distribute. See Wong Sun v. Unit ___ ________ ___ States, 371 U.S. 471, 489-90 n.15 (1963). That t ______ confession is trustworthy concerning admissions relative

Count I is strong evidence that the same confessionequally trustworthy concerning other admissions; namely, t

Singleterry used the gun found in Landry's car to prote himself from rival drug dealers. Even if that admission we not sufficient to show that Singleterry "use[d] or carrie[ the gun "in relation to" his possession and inten distribution of the 6.46 grams of cocaine base, 18 U.S.C.

924(c)(1), the government's other physical evidence

particularly the proximity of Singleterry's loaded gun to t cocaine base -- would most certainly allow a jury to rea that conclusion beyond a reasonable doubt.

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Although we cannot accept Singleterry's theory

such, we do not mean to suggest that the district court

no continuing duty to police the jury's consideration of

confession's probative value. First, if the district cou

loses confidence in its earlier determination of t

corroboration issue and the evidence is otherwise inadequa

to support a conviction, the proper course would be to ent

a judgment of acquittal. Alternatively, if the government

remaining evidence could support a finding of guilt but t

jury's incurable exposure to the confession raises serio

questions about the prospect of a fair trial, the prop

course would be to declare a mistrial. See Stewart v. Unit ___ _______ ___

States, 366 U.S. 1, 10 (1961); United States v. Sepulveda,______ _____________ _________

F.3d 1161, 1184 (1st Cir. 1993), cert. denied, 62 U.S.L. _____ ______

___ (U.S. June 20, 1994).

Second, a confession otherwise admissible un

Opper may nevertheless be inadmissible "if its probati _____

value is substantially outweighed by the danger of unfa

prejudice." Fed. R. Evid. 403.6

Third, particularly where a full confessi

dominates the government's proof, it is fair to assume that

jury will interpret its duty to find guilt beyond


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reasonable doubt to mean that it cannot simply accept

____________________

6. Singleterry does not argue on appeal that the distri court should have excluded evidence of the confession, or a portion thereof, on Rule 403 grounds.

-13- 13

confession at face value. See D'Aquino v. United States, 1 ___ ________ _____________

F.2d 338, 357 (9th Cir. 1951) (holding that where there

adequate corroboration of the confession "the usu

instructions on presumption of innocence and reasonable dou

adequately cover[] all that the jury need be told upon t

question of [corroboration]") (citing Pearlman v. Unit ________ ___

States, 10 F.2d 460 (9th Cir. 1926)), cert. denied, 343 U. ______ _____ ______

935 (1952); McCormick, supra, 145, at 564 ("Nor is the _________ _____

sufficient need to submit the matter to the jury, as long

the jury is adequately sensitized to the need to find a

elements of the crimes charged beyond a reasonable doubt.")

Fourth, we note that a judge has wide latitude


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select appropriate, legally correct instructions to ensu

that the jury weighs the evidence without thoughtless

crediting an out-of-court confession. Cf. Miller, 987 F. ___ ______

at 1465 (holding that district court properly instructed ju

that it could rest guilty verdict on uncorroborated y

credible testimony of an accomplice but should "keep in mi

that such testimony is always to be received with caution a

weighed with great care"); United States v. Twomey, 884 F. _____________ ______

46, 53 (1st Cir. 1989) (suggesting that court may "assist t

jury by demonstrating to them how to go about analyzing t

evidence"), cert. denied, 496 U.S. 908 (1990); Ayling, supr _____ ______ ___

at 1141 (arguing that "guidance on the means of determini

the ultimate credibility of the evidence accords with t

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jury's role as finder of evidentiary sufficiency"

Accordingly, even if the district court has properly admitt

evidence of a confession, the court has the discretion


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determine that the question of trustworthiness is such

close one that it would be appropriate to instruct the ju

to conduct its own corroboration analysis.

In this case, there is no indication that t

district court overlooked its obligation to avoid or li

undue prejudice stemming from evidence of Singleterry

confession. The district court had no occasion to exclu

the confession under Rule 403, correctly found that t

confession was trustworthy, and properly instructed the ju

on the government's burden of proof. Finally, in

manifestly appropriate exercise of discretion, the cou

directed the jury to "consider any . . . facts

circumstances disclosed by the evidence . . . tending

corroborate or to contradict the version of events which t

witnesses have told you."

In sum, there was no error in the lower court

refusal to instruct the jury to apply the Opp __

trustworthiness requirement before considering Singleterry

confession to be probative of his guilt.

B. Constitutionality of Sentencing Distinction Betwe __________________________________________________________ Cocaine Base and Cocaine Powder _______________________________

Singleterry maintains that his sentence on Count

is the product of an unconstitutional distinction betwe

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offenses involving cocaine base and those involving cocai

powder. See 18 U.S.C. 841(b); U.S.S.G. 2D1.1( ___

(equating 1 gram of cocaine base with 100 grams of cocaine

Singleterry did not contend below that the laws at issue a

facially unconstitutional. Instead, he offered evidence

an attempt to demonstrate that the sentencing distincti

between cocaine base and cocaine is either irrationa

racially motivated, or both. On appeal, Singleter

essentially argues that the district court erroneous

applied the relevant constitutional principles to the fac

found at the sentencing hearing. We first recite t

procedural rules that govern this portion of our analysi

then turn to a brief discussion of the merits.

While pure questions of law are subject to de no __ _

review, we generally examine a district court's fact-bas

determinations for clear error. Williams v. Poulos, 11 F. ________ ______

271, 278 (1st Cir. 1993); In re Howard, 996 F.2d at 1327-2 _____________

Thus, the district court's findings of fact are conclusive

appeal "unless, after carefully reading the record a


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according due deference to the trial court's superior abili

to judge credibility, we form `a strong, unyielding beli

that a mistake has been made.'" Williams, 11 F.3d at 2 ________

(quoting Dedham Water Co. v. Cumberland Farms Dairy, Inc

_________________ ___________________________

972 F.2d 453, 457 (1st Cir. 1992)). The same standard

review often applies to mixed questions of law and fac

-16- 16

although we are less likely to defer to the district court

conclusions where proper application of the law primari

requires a clarification of the relevant legal principle

Id. at 278 & n.11 (citing In re Howard, 996 F.2d at 1328). ___ ____________

The clear error standard does not apply, howeve

when the fact-finding at issue concerns "legislative,"

opposed to "historical" facts. See generally Dunagin v. Ci ___ _________ _______ _

of Oxford, 718 F.2d 738, 748 n.8 (5th Cir. 1983) (en ban _________

(plurality), cert. denied, 467 U.S. 1259 (1984); Menora_____ ______ ______


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Illinois High Sch. Ass'n, 683 F.2d 1030, 1036 (7th Ci __________________________

1982), cert. denied, 459 U.S. 1156 (1983); see also Lockha _____ ______ ___ ____ _____

v. McCree, 476 U.S. 162, 168-69 n.3 (1986) (reservi

______

question while suggesting approval of plurality opinion

Dunagin). "Legislative facts are those gener _______

considerations that move a lawmaking or rulemaking body

adopt a rule, as distinct from the facts which determi

whether the rule was correctly applied." Menora, 683 F.2d______

1036. Accordingly, we need not defer to the lower court

assessment of the "evidence" Singleterry offers

demonstrate the irrational and racially discriminatory natu

of the adoption of the distinction between cocaine base a

cocaine powder offenses.

1. Irrational Classification _____________________________

It is well settled that an irration

classification imposed by federal law is violative of t

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equal protection component of the Fifth Amendment's

Process Clause. See Miranda v. Secretary of Treasury, 7 ___ _______ ______________________

F.2d 1, 6 (1st Cir. 1985) (citing Mathews v. De Castro, 4 _______ _________

U.S. 181, 182 n.1 (1976)). Singleterry contends that

distinction between cocaine base and cocaine powder is suc

classification because the use of cocaine base allege

presents no greater health threat than the use of cocai

powder. Yet Singleterry presents little or no evidence

support this contention, nor has he explained why su

evidence would be dispositive of the rationality of t

distinction at issue.

Even if there is no telling difference in t

health effects associated with the use of different types

cocaine, it would be rational to treat cocaine base offens

more harshly for other reasons. For example, Congress cou

rationally seek to strengthen the deterrent effect of t

narcotics laws by increasing the "cost" to a criminal

using or selling a cocaine substance that, like cocaine bas

is sold at a cheaper unit price than other cocai

substances. Indeed, of the four citations to t

Congressional Record that Singleterry offers in his openi

brief as probative of congressional intent, each sugges

that Congress has been concerned that the low price

cocaine base (in the absolute sense as well as relative


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cocaine) would lead to an explosion in drug use.

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In any event, the district court correct

concluded that "Congress had before it sufficient . .

information to make distinctions that would justify . .

more severe sentences for trafficking in or using cocai

base or crack than cocaine itself." Accord United States______ _____________

Frazier, 981 F.2d 92, 95 (3d Cir. 1992) (noting that t _______

Third Circuit, "along with every other federal court

appeals to rule on the issue, has held that the distincti

between cocaine base and cocaine in the federal sentenci

scheme is constitutional under rational basis equ

protection review"), cert. denied, 113 S. Ct. 1661, 16 _____ ______

(1993).

2. Racially Discriminatory Classification

__________________________________________

Singleterry next argues that the harsher penalti

for cocaine base offenses are unconstitutional because t


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have such a disproportionate effect on blacks as to give ri

to an inference that Congress and the Sentencing Commissi

established those penalties for the purpose of raci

discrimination. See Yick Wo v. Hopkins, 118 U.S. 356 (1886

___ _______ _______

As proof of disparate impact, Singleterry offers so

evidence that (1) most cocaine base users are black whi

most users of cocaine are white, and (2) the vast majority

sentences for cocaine base offenses are imposed on bla

defendants while white defendants comprise the largest sha

of those sentenced for cocaine offenses. In additio

-19- 19

Singleterry has offered some evidence that Congre

anticipated such an impact because, in adopting heighten

penalties for cocaine base offenses, it was attempting

address a problem afflicting lower-income urban communities

We agree that where evidence of disparate impa

leads most naturally to an inference of discriminato

purpose, the governmental classification may be subject


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strict scrutiny under equal protection principles. S

McCleskey v. Kemp, 481 U.S. 279, 293 (1987) (holding t _________ ____

"`stark'" statistical pattern may serve "as the sole proof

discriminatory intent under the Constitution") (quoti

Village of Arlington Heights v. Metropolitan Hous. De ______________________________ ______________________

Corp., 429 U.S. 252, 266 (1977)); Washington v. Davis, 4 _____ __________ _____

U.S. 229, 242 (1976) ("[D]iscriminatory impact . . . may f

all practical purposes demonstrate unconstitutionali

because in various circumstances the discrimination is ve

difficult to explain on nonracial grounds."); Gomillion_________

Lightfoot, 364 U.S. 339, 341 (1960); Yick Wo, 118 U.S._________ _______

373-74. But here, as we suggested in discussing t

rationality of the sentencing scheme, there are racial

neutral grounds for the classification that more "plausib

explain[]" its impact on blacks. Personnel Adm'r v. Feene _______________ ____

442 U.S. 256, 275 (1979). As a result, there is insufficie

evidence "that the distinction drawn between cocaine base a

cocaine was motivated by any racial animus or discriminato

-20- 20


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intent on the part of either Congress or the Sentenci

Commission." Frazier, 981 F.2d at 95 (citing United Stat _______ __________

v. Simmons, 964 F.2d 763 (8th Cir.), cert. denied, 113 S. C _______ _____ ______

632 (1992), and United States v. Galloway, 951 F.2d 64 (5

______________ ________

Cir. 1992)). But see United States v. Clary, 846 F. Sup ___ ___ _____________ _____

768 (E.D. Mo. 1994) (holding that sentencing distincti

between cocaine base and cocaine powder violates equ

protection principles after finding circumstantial eviden

of unconscious discriminatory purpose). In short, there

no error in the district court's determination to t

effect.

Finally, we note that while "[t]he equal protecti

obligation imposed by the Due Process Clause of the Fif

Amendment is not an obligation to provide the best governan

possible," Schweiker v. Wilson, 450 U.S. 221, 230 (1981), t _________ ______

absence of a constitutional command is not an invitation

government complacency. Although Singleterry has n

established a constitutional violation, he has rais

important questions about the efficacy and fairness of o

current sentencing policies for offenses involving cocai


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substances. We leave the resolution of these matters to t

considered judgment of those with the proper authority a

institutional capacity.

III. III.

____

CONCLUSION CONCLUSION __________

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For the foregoing reasons, we affirm Singleterry

conviction as well as his sentence.

So ordered. ___________


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-22- 22

united states v. singleterry, 1st cir. (1994)

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